R. v. Marcellus (G.W.), (1999) 214 N.B.R.(2d) 72 (CA)

• Judge: Rice, Turnbull and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 13, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 214 N.B.R.(2d) 72 (CA)

R. v. Marcellus (G.W.) (1999), 214 N.B.R.(2d) 72 (CA);

    214 R.N.-B.(2e) 72; 547 A.P.R. 72

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.B.R.(2d) TBEd. JN.032

George W. Marcellus (appellant) v. Her Majesty The Queen (respondent)

(145/98/CA)

Indexed As: R. v. Marcellus (G.W.)

New Brunswick Court of Appeal

Rice, Turnbull and Larlee, JJ.A.

June 15, 1999.

Summary:

The accused was convicted of driving a motor vehicle while having an excessive blood-alcohol content, contrary to s. 253(b) of the Criminal Code. The accused appealed, submitting that the Crown failed to prove that not less than 15 clear minutes elapsed between the taking of the samples, as re­quired under s. 258(1)(c)(ii).

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment not reported in this series of reports, dismissed the appeal. The accused appealed.

The New Brunswick Court of Appeal, Rice, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence - Time interval between taking - Breathalyzer tests were adminis­tered to the accused at 5:53 p.m. and 6:08 p.m. - The accused sub­mitted that since the taking of each sample required time, the Crown failed to prove an "interval of at least 15 minutes" between the taking of the two samples as required in s. 258(1)(c)(ii) of the Criminal Code - The New Brunswick Court of Appeal reviewed the law relating to this section and held that the certificate was valid.

Words and Phrases

Interval of at least 15 minutes - The New Brunswick Court of Appeal discussed the meaning of this phrase as used in s. 258(1)(c)(ii) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 1 to 10.

Cases Noticed:

R. v. Perry, [1980] 1 S.C.R. 1104; 33 N.R. 106, affing. (1978), 33 N.R. 108; 41 C.C.C.(2d) 182 (B.C.C.A.), dist. [para. 4].

R. v. Taylor (1984), 7 C.C.C.(3d) 293 (Ont. C.A.), refd to. [para. 4].

R. v. Dauphine (1977), 18 N.B.R.(2d) 148; 26 A.P.R. 148 (C.A.), refd to. [para. 11].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 11].

R. v. Staiger, [1977] 5 W.W.R. 476; 4 A.R. 494; 35 C.C.C.(2d) 433 (C.A.), refd to. [para. 8].

R. v. Davis, [1978] 1 W.W.R. 476; 35 C.C.C.(2d) 224 (Sask. C.A.), refd to. [para. 8].

R. v. Suter (1977), 22 N.S.R.(2d) 273; 31 A.P.R. 273; 37 C.C.C.(2d) 127 (C.A.), refd to. [para. 8].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c) [para. 3].

Authors and Works Noticed:

Sullivan, Ruth, Statutory Interpretation (1997), pp. 170-171 [para. 12].

Counsel:

Wendell J. Maxwell, Q.C., for the appel­lant;

Anthony Allman, Q.C., for the respondent.

This appeal was heard on April 13, 1999, before Rice, Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. On June 15, 1999, the decision of the court was delivered and the following opinions were filed:

Larlee, J.A. (Turnbull, J.A., concurring) - see paragraphs 1 to 14;

Rice, J.A., dissenting - see paragraphs 15 to 24.